In the garb of reciprocity

Anatole France once quipped that: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”
What the noted French author means is that a non-discriminatory arrangement is not necessarily fair. Evidently, the rich don’t need to sleep in public places or steal food. So legislation that outlaws such acts is out-and-out poor-specific.
By the same token, a treaty is not a square deal when, notwithstanding its written provisions, in practice one side has to assume all obligations because of its special circumstances. The same applies to the Readmission Agreement between the European Union (EU) and Pakistan, which is in the news these days.
The agreement, which was signed in 2009 and came into force a year later, puts in place a reciprocal arrangement for the return of nationals of one party residing without authorisation in the other party (in case of the EU, the word ‘party’ means one of its member states). It also provides for readmission of third country nationals by either party in case they were issued a visa or residence permit by that party, or entered directly from the territory of that party to the other party.
Article 2, paragraph 1 of the agreement provides that the “Requested State shall readmit”, after the nationality has been proved, “Upon application by the Requesting State any of its nationals who does not, or who no longer fulfils the conditions in force for entry into, presence in, or residence on, the territory of the Requesting State.”
Thus for the deportation of a person two conditions have to be fulfilled: (a) that he is residing in the requesting state in an unauthorised manner; and (b) that it is established that he is a national of the requested state. It is not necessary for a person to be deported to have entered the requesting state illegally. He might have been admitted legally but in view of some change in relevant regulations, his residence has become unauthorised.
Article 3, which applies to deportation and readmission of third country nationals, duplicates the above mentioned first condition enumerated in Article 2 (1). In place of the second condition, it stipulates that the person concerned either: (a) holds a valid visa or residence permit issued by the requested state, or (b) entered the territory of the state seeking readmission directly from the requested state.
The agreement provides detailed procedure for sending back illegal immigrants. An application must be made by the state seeking readmission to the other state. However, there is no need for such an application in case the person concerned has a valid passport, a valid visa or residence authorisation issued by the state to which he is to be sent back.
The state to which the application is made must respond within a month. In special circumstances, the response period may be extended by another month. Failure to reply within the stipulated period shall be construed as consent to readmission. Thereafter, the illegal resident must be transferred back within three months. All international transport costs shall be borne by the requested state.
A Joint Readmission Committee comprising representatives from both Pakistan and the EU has been constituted to oversee the implementation of the agreement and exchange of information between the signatories.
To establish proof of nationality, the agreement provides three kinds of documents including the passport, the computerised national identity card, and the citizenship certificate issued by the requested state. In case none of these documents is available, nationality may be established on the basis of: (a) digital fingerprints or other biometric data; (b) temporary and provisional national identity cards, military identity cards and birth certificates issued by the government of the requested state; (c) service cards; or (d) simply the statement made by the person to be deported.
After the requested state has agreed, explicitly or implicitly, to take back the person concerned, whether its own or a third country national, it will also have to provide him with a valid travel document.
Although, on the face of it, the Readmission Agreement is based on reciprocity, in practice it is unilateral. Every year thousands of people from Pakistan migrate to one of the 28 member countries of the EU in search of employment and better living standards. A sizeable number of these persons cross the border illegally. On the other hand, few, if any, EU member nationals, come to settle in Pakistan – legally or illegally.
While there may be thousands of illegal immigrants of Pakistani origin residing in the EU – whose readmission to the home country Europeans have successfully sought from time to time – it is seldom that Pakistan comes out with such a request. This makes readmission, the subject of the agreement in question, a unilateral obligation for all practical purposes, which only Pakistan has to fulfil. The only obligation that EU countries have is to finance the travel cost of the unfortunate deportee.
Due to a combination of push and pull factors Pakistanis continued to go to the EU countries; the latter would send back those who were found to be staying illegally. EU members, particularly those located on the western part of the continent, have had liberal immigration regimes – which means that not all illegal migrants were deported.
The problem started when the Syrian crisis forced a massive number of refugees to knock at the door of EU countries for admission, forcing their governments to get tough on illegal settlers of other nationalities including Pakistanis. The Paris attacks made the situation more difficult for the emigrants. The high importance that the European governments attach to the refugee problem is borne out by the manner they made a multi-billion dollar deal with Turkey to stem the influx of Syrian refugees.
The Pakistan government (read Ministry of Interior) responded by putting on hold the operation of the Readmission Agreement and threatening to penalise air carriers bringing home the deported persons. This prompted the European Commission, the executive arm of the EU, to send its commissioner for migration and home affairs to Islamabad to meet his Pakistani counterpart.
The outcome of the meeting was what such interactions generally yield: Pakistan’s concerns on the ‘technical problems in the agreement would be taken up by the readmission committee in coming January; both sides would enhance cooperation in migration and security issues; and the office of a European migration officer would be set up in Islamabad. The EU also promised to provide financial assistance to support reintegration of the deported Pakistanis.
It is not clear if Pakistan has withdrawn the suspension of the Readmission Agreement. At any rate, it would be difficult for Islamabad to resist for long Brussels’ pressure on taking back its citizens, because this commitment arises out of a legally binding international treaty. Legally, it is immaterial that the treaty in question is unilateral in the garb of being reciprocal.
The writer is a graduate from a western European university.
Email: hussainhzaidi@gmail.com